GitLab

Remind me, what's an executive order?

Executive orders are directives purchased by the president of the United States that direct federal government companies and authorities to take particular actions. While they are not laws, they have the force of law and impact how existing laws are implemented or imposed.

Executive orders affect the companies of the executive branch and therefore do not need the approval of Congress. They should be within the president's constitutional authority and might be challenged in court if considered unconstitutional.

Executive orders might be rescinded, reversed by future presidents, or challenged in court, employment and enforcement priorities can change throughout any administration.

The new administration's actions have significant results beyond executive orders. For more on mitigating danger, worldwide organizations can take new chances by staying nimble.

Implications of the executive orders for DEI initiatives and employment in private-sector companies

On Jan. 21, President Trump released "Ending Illegal Discrimination and Restoring Merit-Based Opportunity," which reverses numerous prior executive orders and memoranda, including Executive Order 11246 (EO 11246) checked in 1965 by President Lyndon B. Johnson.

EO 11246 needed every federal government contract to include a declaration that the specialist will not victimize any worker or candidate for work based on race, creed, color, or nationwide origin.

Despite President Trump's new executive order, the underlying federal anti-discrimination law remains unchanged for private-sector workers.

However, the executive order signals that there might be changing enforcement concerns in the new administration. The order directs all federal firms to "fight unlawful private-sector DEI choices, mandates, policies, programs, and activities."

In December 2024, President-elect Trump tapped Harmeet K. Dhillon to lead the Justice Department's civil rights office, indicating his record of "taking legal action against corporations who use 'woke' policies to discriminate versus their workers."

In addition to withdrawing EO 11246, the Jan. 21 executive order instructs each firm of the federal government to determine "approximately 9 prospective civic compliance investigations" of personal sector entities within 120 days of the order - by May 21, 2025.

The personal sector entities based on these investigations include publicly traded corporations, large nonprofits - including bar associations - big structures, and universities whose endowments surpass US$ 1 billion.

Organizations that may be targeted should ask:

- What is my organization's danger tolerance?
- How will employees react to the company's actions?
- How will clients and stakeholders react?
What in-house counsel ought to believe about:

Assess any federal contracts and grants

- Determine if they include any terms or conditions associated with DEI that may conflict with present laws and guidelines
Review your company's existing DEI policies to understand your threat

- Prepare for increased analysis and possible civil compliance examinations
Document, document, file

- Hiring and recruitment procedures
- Performance assessments and promotion decisions
- Training products and participation records
- Any modifications to DEI policies
Implications for federal professionals

To name a few steps, the Jan. 21 Executive Order needs the heads of federal companies to include particular terms in every agreement or employment grant award:

- "A term requiring the contractual counterparty or grant recipient to concur that its compliance in all aspects with all suitable Federal anti-discrimination laws is material to the government's payment choices for functions of area 3729( b)( 4) of title 31, United States Code"; and
- "A term requiring such counterparty or recipient to accredit that it does not operate any programs promoting DEI that break any appropriate Federal anti-discrimination laws."
Section 3729 of title 31 of the United States Code is an arrangement of the US False Claims Act, a federal law that imposes civil penalties on those who make incorrect claims to the government in order to affect the payment or invoice of money or residential or commercial property.

The certification requirement carries a prospective threat of litigation for federal specialists under the False Claims Act. In-house attorneys at federal contractors therefore have a particular interest in guaranteeing their company's policies, procedures, practices, communications and content, are examined. Assess if modifications are required to alleviate the danger of lawsuits.

Executive orders targeting prohibited migration

President Trump's preliminary flurry of executive orders included many - such as the Jan. 20 executive order "Protecting the American People Against Invasion" - targeted at limiting prohibited migration and deporting prohibited immigrants. The orders require enforcement actions by federal firms against unlawful immigration.

In-house legal representatives ought to think about reviewing their organization's work eligibility verification process. They might likewise wish to think about whether the organization is gotten ready for reacting to an I-9 audit or a worksite enforcement action (or employment raid) by immigration enforcement firms.

Sectors that may be especially impacted include farming, hospitality, and other industries such as building and construction. From 2020-2022, 42 percent of crop farmworkers held no work permission, according to the US Department of Agriculture. The American Immigration Council estimates that more than one million undocumented immigrants work in hospitality, representing 7.1 percent of the labor force.

In-house counsel have a crucial function to play in developing and making sure constant application of the Form I-9 and E-Verify guidelines the federal government utilizes to carry out and enforce immigration law, shares John W. Mazzeo, AGC, director of I-9 and E-Verify compliance for Vertical Screen, Inc., in a 2024 ACC Docket post.

Have a look at helpful checklists of considerations pertinent for internal attorneys on the topic of I-9 audits and worksite enforcement actions.

If a company does not work together with a civil administrative warrant provided by US Immigration and Customs Enforcement (ICE), there is a risk that the firm could commence an I-9 audit if they felt an employer was blocking their requirement to arrest a non-citizen worker, or sometimes get a criminal warrant from a judge if actions support it.

Steps internal counsel must consider:

- Determine the number of staff members might possibly be impacted
- Review your company's employment eligibility confirmation procedure
- Ensure your company's process is documented and defensible
- Implement and impose clear policies
- Monitor legal developments, including litigation and enforcement guidance
Mitigate threat, remain active, and seize new chances

The recent executive orders will significantly impact international companies. Legal departments and internal counsel will require to assist their organizations understand and adjust to changes, guaranteeing compliance or litigating when proper.

Many of the brand-new administration's choices will play out over the coming months, including brand-new executive orders and legal difficulties. The Docket will continue to keep track of advancements. Global in-house legal representatives should get ready for quick developments related to:

Trade and tariffs. On Feb. 1, President Trump bought the imposition of a 25-percent tariff on imports from Canada and Mexico, and 10-percent additional tariffs on imports from China. The previous two were both postponed by a month as the administration takes part in negotiations. Meanwhile, China has actually begun its own retaliatory measures on US items. He had actually previously revealed his intent to impose 25-percent intensifying tariffs on Colombia (an action that was eventually not taken).
Technology and copyright. Among the president's first actions was to rescind the previous administration's AI executive order. The new administration likewise extended a grace period for TikTok's upcoming ban, sending waves throughout the innovation sector, both in the United States and abroad.
Energy, environment, and health. The president likewise withdrew the United States from the Paris Climate Agreement and the World Health Organization, putting an early emphasis on American energy independence and away from the previous administration's international sustainability efforts.
Steps internal counsel need to think about:

- Assess the impact of potential tariff boosts on supply chain and company continuity.
- Assess the organization's dependency on social networks platforms, such as for marketing purposes, and the potential needs to backup social media data and possessions in the occasion their chosen platform stops to be available.
- Consider how developments in the new administration's technique to ecological, and governance concerns may impact the company's ESG technique.
Disclaimer: The info in any resource in this site ought to not be construed as legal suggestions or as a legal opinion on particular realities, employment and must not be thought about representing the views of its authors, its sponsors, and/or ACC. These resources are not meant as a conclusive declaration on the subject addressed. Rather, they are planned to function as a tool supplying practical assistance and recommendations for the hectic in-house professional and other readers.